Balkinization: Affirmative Action for Conservatives I

Affirmative Action for Conservatives I

Mark Tushnet

This is a belated reaction to the letters from several conservative legal academics to the AALS dealing with diversity along political lines. I’m going to do two posts in quick succession, and they ought to be read together. This first post goes through a number of qualifications that, I think, are required for one to think reasonably clearly about the issues. The second makes some comments on the issue of political diversity in the field I know best, public law scholarship.

The first and probably most important point is that we always have to keep Sturgeon’s Law in mind: “Ninety percent of everything is crud.” So, the question at issue is something like this: How much more likely is it that a liberal who produces crud will get a job in the legal academy than a conservative who produces crud? That framing is important because, first, it’s the correct question, and second, because it helps avoid unproductive discussions that begin with an assertion that “Conservative X did really good work but couldn’t get a job, while liberal Y wrote something quite pedestrian and did get a job,” and then continue by focusing on whether X’s work is actually as good as is claimed, and Y’s as pedestrian. We ought to frame the discussion on the assumption that we’re comparing two candidates who work is cruddy, because – per Sturgeon’s Law – that quite likely to be true.

Second, I think the concern should be “not getting a job (subject to the next qualification),” not “not getting a job at institution A.” Of course specific candidates will care a great deal about where s/he gets a job, but from the point of view of the legal academy as a whole, specific placements are less important than diversity in the academy as a whole. (This is not to defend overt political discrimination – about which more in a bit – at individual institutions, but it is to suggest that overt discrimination is less important systemically than actual outcomes. And, after all, the general interest in affirmative action/diversity is driven by concerns about disparate effect, not disparate intent.) In addition, in (I’m reasonably sure) every individual case there will be a “local” story about why a particular candidate didn’t get a job as a specific institution. These local stories typically take the form of “We had a pressing need for a person in field N that year, and unfortunately the person you’re talking about didn’t satisfy that need.” [And if the institution hired someone in the candidate’s field, the local story may well be, “Yes, but the person we hired did something else we found attractive, whereas the person you’re talking about, while fine in his/her field, didn’t offer that additional feature.]” We need to take an approach that washes out all these local stories.

Third, at least for myself, the question should be about getting a job within a broad band of roughly equivalent institutions. I’m not a big fan of the T-14, 15-50, etc. bands when used for a large number of purposes (my experience is that individuals at institutions in every band do really interesting work, for example, so that institutional affiliation isn’t, alone, a good proxy for quality), but in the present context I don’t think it’s worth getting exercised about the fact that a conservative candidate got a job at an institution closer to the “50” end of the band while the “comparator” liberal candidate got a job at an institution ranked fifteen or twenty places higher. Again, this may be a matter of real concern to the candidate (particularly if one thinks, as may be true, that “writing out” is more difficult even within bands), but, again for myself, I don’t think it’s a matter of concern for the legal academy as a whole.

Fourth, my focus in these comments is on entry-level hiring, not lateral hiring. The latter is, I think, even more subject to “local” stories than entry-level hiring (with “quality of teaching” serving as the generic substitute for “we didn’t need someone in that field that year”). And, I confess I can’t avoid a certain amount of something akin to, but not quite the same as Schadenfreude, which I capture in the following: Going by the AALS Directory, my colleagues Adrian Vermeule, Jack Goldsmith, and John Manning were hired by Harvard 10 years into their careers in the legal academy; I was hired by Harvard 33 years into my career. It’s going to take me a long time to get exercised about political discrimination against conservatives in lateral hiring.

Fifth, with respect to entry-level hiring: I haven’t been on an entry-level hiring committee for a long time (I served on Harvard’s entry-level committee for one year about a decade ago, and not on Georgetown’s for quite a long time before I left). And, of course, a lot of the action takes place at the committee level. Political discrimination is more likely to occur, I think, at the screening stage than at the faculty-vote stage, but I wouldn’t have observed what happens at the screening stage. OTOH, I do read pretty widely, and I read lots of articles (in public law) that are either first articles or job talk articles, so I think I have a decent sense of what candidates are presenting, at least in their scholarship, to the hiring committees.

Finally, just a note on one of the letters’ specific requests, for access to the Faculty Appointments Register. Putting aside concerns about confidentiality, which I’m not sure could be addressed by anonymizing that wouldn’t quite substantially undermine the FAR’s utility for research into political discrimination, I’m pretty confident that what you could get out of the FAR for these purposes would be quite limited. Memberships might show up, though the “word on the street” that people shouldn’t place Federalist Society membership on their FAR forms suggests that memberships aren’t going to be a good proxy for politics. Who a candidate clerked for (if s/he did) is also a quite imperfect proxy, although I gather it’s getting better as judges themselves screen more these days for politics. And, I suppose there might be sophisticated word searches on article titles that might get you somewhere. But, I suspect that the quality of research into political discrimination based on the FAR would be quite low – and lower than its results would be touted to be.

So, with that in the background, on to “the merits”: Is the typical conservative crud (in public law) systematically worse than the typical liberal crud?

Posted 9:00 AM by Mark Tushnet [link]